최근 기관투자자의 ESG (Environment, Social, Governance) 요구 강화에 따른 회사법의 쟁점과 과제

As shareholder rights are strengthened through institutionalization of shareholders, shareholder activism, which is actively involved in the governance structure of the investee, is spreading all over the world. There are two types of shareholder activism that have different characteristics. "Hedge fund shareholder activism," which seeks to increase the short-term share price of the target company, and "Stewardship shareholder activism," which pursues sustainability of the company. In some cases, two types of shareholder activism strategies overlap, but in general, the former pursues the company's short-term profit and the latter pursues long-term profit. The corporate governance structure pursued by 'stewardship activism' differs not only from the shareholder-oriented model pursued by hedge fund activism but also from the stakeholder-oriented model emphasizing corporate social responsibility. The new governance model pursued by Stewardship shareholder activism does not force us to choose either shareholder interests or corporate social responsibility as in existing governance models. ʻʻStewardship shareholder activismʼʼ focuses on the impact of non-financial factors (ESG) such as corporate governance, social and environmental issues on the long-term value of shareholders and companies. And they actively ask the investee companies to systematically manage social and environmental risks within the governance structure. This shareholder activism is called 'ESG risk-related activism'. Under current company law, the company's directors do not bear the new obligation to establish a governance system to manage the E&S-related risks systematically in accordance with the ESG risk-related activism's needs. However, it is not desirable to impose these obligations under company law through the amendment of the Companies Act. Even without enforcing legal obligations on companies that do not manage ESG risks properly, capital market pressures still work, for example, ESG risk-related activist are actively seeking improvements, opposing the appointment of directors, or offering shareholder proposal. It is desirable for the Company Law to refrain from judicial review by applying 'business judgment rule' to companies that have effectively constructed and operated the ESG risk management system in advance for internal control. And by allowing the pressure in the capital market to work in the direction of pursuing long-term interests rather than short-term interests of shareholders, Policy authority should prevent the spread of hedge fund activism, which is only bent on pursuing short-term profits, and allow companies and shareholders to establish constructive ESG activism that voluntarily improves ESG and pursues the sustainability of the company.